Distinguished ladies and gentlemen!
I am very grateful to the organizers of this esteemed Forum for the opportunity to speak here, and moreover, to do so alongside renowned researchers—Bohdan Futey, Roman Serbyn, George G. Grabowicz, and Volodymyr Vasylenko. It is a great honor for me.
Ten years ago, I wrote a paper in which I argued that the Holodomor of 1932–1933 indeed had the characteristics of the crime of genocide according to the 1948 UN Genocide Convention. At that time, in April 2008, I was the only member of the National Commission for Strengthening Democracy and the Rule of Law who, at its meeting, criticized the Conclusion prepared for the UN General Assembly on the recognition of the Holodomor as genocide. I argued that there are well-known experts in the world who disagree with this qualification and present arguments against it, and therefore the Conclusion should have presented convincing counterarguments to their points, yet it failed to address this argumentation at all. The Chairman of the National Commission, then Minister of Justice Mykola Onishchuk, proposed creating a group to improve the text of the Conclusion, which would include Mykola Poludyonny, Bohdan Futey, and myself. I was forced to set aside all my affairs and spent four months preparing my own version of this conclusion. I consider it correct to this day, although it differs significantly from the generally accepted concept of the Holodomor as genocide in our state.
This text was written as an indictment for a court; it establishes the object, subject, event, and elements of the crime of genocide, its motive and direct intent, and also provides a description of historical facts, considers the problem of the retroactive effect of the Genocide Convention, and the impact of the Holodomor on modern Ukraine. Due to time constraints, I will briefly discuss the object of the crime, the intent, and the retroactive effect of the Convention.
First of all, I will note that I proposed to count the period of the crime of genocide in Ukraine and the Kuban from the end of October 1932, when the actions of the Molotov and Kaganovich commissions began, until August 1933, when the famine was stopped. Before that, the legal basis for the Soviet grain procurement policy was the same for all grain-producing regions of the USSR. In the first half of 1932, 144,000 peasants died of starvation in Ukraine. The famine of 1932 was stopped by providing aid to the starving, when grain intended for export was returned from the ports, and bread was even purchased from three neighboring countries. In addition, in 1932, there were no blocking detachments, as there were in 1933, which prevented peasants from leaving to buy food and exchange goods for it. At that time, approximately 2.7 million peasants left in search of food. That is, the Soviet authorities did not yet have the intention to destroy the peasants by organizing an artificial famine. Therefore, their actions in the period up to the end of October 1932 should be qualified as a crime against humanity, and this finding is valid for all grain-producing regions of the USSR.
The description of the protected group that I proposed differed significantly from the generally accepted concept in the state, according to which the object of the crime was an ethnic group—the Ukrainian nation, and for the representatives of ethnic minorities who died of starvation, it was not genocide but another crime—extermination. I cannot agree with this construction, which is presented by Professor Vasylenko. In my opinion, we should consider the national group—the part of the Ukrainian people who died from starvation and political repressions in the period from October 1932 to August 1933, regardless of ethnic, religious, and other characteristics. This part is significant—at least 10% (according to other data, 15%) of the population of Ukraine died from starvation and can be considered the object of the crime of genocide in accordance with the 1948 Genocide Convention.
The secret resolutions of the Central Committee of the All-Union Communist Party (Bolsheviks) of December 14 and 15, 1932, completely changed the policy of Ukrainization and placed the responsibility for the food crisis, along with the peasants, on the leaders of “Ukrainization,” thus beginning the destruction of the Ukrainian national communists. The numerous representatives of the cultural, economic, and political elite repressed during this period were of great importance for ensuring the development of the Ukrainian people. Therefore, in addition to the peasants who died of starvation, the description of the group must also include all those who died from political repressions. In total, the OGPU in Ukraine arrested 199,000 people in 1932–1933 (compared to 119,000 in 1929–1931 and 71,000 in 1934–1936).
However, the Ukrainians of the Kuban should be considered an ethnic group that became the object of the crime of genocide.
I will note that at that time I was not yet familiar with Raphael Lemkin’s work “Soviet Genocide in Ukraine”; it was published by Roman Serbyn in October 2008. However, I had taken a step in the same direction. Lemkin considered the object of the Ukrainian genocide to be a national (in the civic sense) group, and Ukrainians outside of Ukraine, particularly in the Kuban, as an ethnic group. He described the genocide as the destruction of the body of the people—the peasantry, the brain of the people—the intelligentsia, and the soul of the people—the Ukrainian churches.
The defining element for qualifying a crime as genocide, according to the Genocide Convention, is the presence of direct intent to destroy members of the respective group because of their belonging to it. All the actions of the USSR’s Communist Party leadership, beginning in October 1932, demonstrated a direct intent to organize the Holodomor and carry out political repressions against those who obstructed these plans.
Thus, on October 22, 1932, Stalin granted the Molotov and Kaganovich commissions extraordinary powers over Ukraine and the Kuban to fulfill the grain procurement plan. The decisions made by party and Soviet bodies at the initiative of these commissions testify to the intention to deprive the peasants of the grain distributed to them for their work and to seize other food (meat, potatoes) through sweeping searches and fines in kind. Harsh punishments were introduced for peasants and local functionaries (“saboteurs with a party card in their pocket”) who distributed grain to hungry peasants as payment for workdays. Hundreds of them were shot, and thousands were arrested and convicted.
On December 20, 1932, at Kaganovich’s suggestion, the Politburo of the Central Committee of the Communist Party (Bolsheviks) of Ukraine adopted a decision to increase grain deliveries, for which an order was given on December 29 to surrender all collective farm funds, including seed funds. This cannot be qualified as anything other than the deliberate deprivation of peasants of the last of their grain reserves.
On January 1, 1933, a telegram was sent from the “leader, teacher, and friend of all peasants,” which consisted of two points. The first: those who voluntarily surrender “previously stolen and hidden grain” to the state will not be repressed. The second: the most severe measures of punishment will be applied to those who continue to hide it. All unaccounted-for grain was required to be surrendered. If you didn't surrender it, there would be a search. If grain was found, the penalty was death or 10 years of imprisonment. If it was not found, other food would be taken as a fine. The consequence of the telegram was the combination of searches with fines in kind into a single punitive action. At the same time, Stalin was informed about the results of previous searches and knew: the peasants had no grain, the procurement plan was impossible to fulfill. This was his “devastating blow,” which demonstrates the intent to seize food from the peasants in order to organize a famine.
The existence of intent to destroy is also proven by the refusal of offers of international aid to the starving and the continuation of grain exports and the stockpiling of reserves in granaries (this grain would have been enough to save the starving), although the leadership of the USSR was well informed about the scale of the famine. Another proof of intent was the speed with which the famine was stopped in the second half of 1933.
The directive of the Council of People's Commissars of the USSR and the Central Committee of the All-Union Communist Party (Bolsheviks) of January 22, 1933, prohibited the departure of starving people to other regions in search of bread, which must also be considered as deliberate actions with the intent to deprive the starving of their last opportunities to find food for their families.
In turn, the political repressions of 1933 demonstrated the intent to destroy the political and intellectual elite of the republic.
In my opinion, the totality of the evidence presented meets the highest standard of proof required for the crime of genocide—“beyond a reasonable doubt.”
It would seem that we could end it here. However, can the provisions of the 1948 Genocide Convention be applied to the events in Ukraine of 1932–1933? Does the retroactive effect of an international treaty apply in this case?
An affirmative answer to this question is argued as follows. According to Part 1 of Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” This same fundamental principle is enshrined in the first part of Article 15 of the International Covenant on Civil and Political Rights, and these international treaties are part of domestic law. And the second parts of these same articles of the Convention and the Covenant affirm the possibility of punishment for an offense if, at the time of its commission, it was considered a crime “according to the general principles of law.” Thus, the second part of Article 7 of the 1950 Convention proclaims: “This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.”
But the second parts of Article 7 of the Convention and Article 15 of the Covenant have not been implemented into Ukrainian legislation. And their direct effect is contradicted by Article 58 of the Constitution of Ukraine, which strictly, without any exceptions, enshrines the principle of non-retroactivity of the law: “no one shall be held liable for acts which, at the time they were committed, were not recognized by law as an offence.” We have an obvious conflict between the norm of the Constitution of Ukraine and the norms of the second parts of Article 7 of the Convention and Article 15 of the Covenant. In the case of a conflict between a norm of the Constitution of Ukraine and a norm of an international treaty, the norm of the Constitution, as is known, prevails in Ukraine. Thus, today, at the national level, the Holodomor of 1932–33 cannot yet be defined as genocide. To do this, it is necessary to amend the Constitution by including in Article 58 the above-mentioned wording of the second part of Article 7 of the Convention.
I submitted a corresponding proposal to the working group of the Constitutional Commission, which was preparing amendments to the human rights section of the Constitution, and the head of this group, Professor Volodymyr Butkevych, supported it; it was included in the draft amendments to the 2nd section of the Constitution submitted by the working group.
The consequences of the Holodomor of 1932–1933 in Ukraine are horrific; they concern “the dead, the living, and the unborn” (Taras Shevchenko). In addition to the millions who died from starvation and were never born, which in itself significantly affected the gene pool and development of the Ukrainian people, the Holodomor painfully struck those who survived. It negatively affected their social and political activity and sowed fear of the authorities. The historical memory and psychology of those who survived in 1932–1933 were crippled by memories of cannibalism, of denouncing neighbors, and so on. These tragic events are still reflected in the psychology of their descendants.
The Holodomor and the destruction of the Ukrainian intellectual elite, which were forbidden topics until the late 1980s, led to a break in the continuity of the intellectual development of the Ukrainian people, a loss of identity and common values. The tragedy of the Holodomor also resulted in an unconscious inferiority complex in a large number of Ukrainians.
Post-genocidal Ukrainian society urgently needs a clear conscience, freedom from psychological complexes, and freedom from fear. This is impossible without the public recognition of the Holodomor and other acts of the Soviet authorities as crimes, which must be done at the legal level. This is a moral duty to the victims; it is necessary for the affirmation of historical justice, for strengthening the immune system of the Ukrainian people against political repressions, violence, and unjustified state coercion. It is also necessary for liberation from the Soviet vestiges of our consciousness and from the rudimentary Soviet practices in state administration that are a heavy burden holding back our progress.
In my opinion, the ideas of Raphael Lemkin are a guide for the future in the legal assessment of the crimes of communism. They motivate us to consider these crimes against the body, brain, and soul of the Ukrainian people—the peasantry, the intelligentsia, and the church—as a series of genocidal crimes or crimes against humanity, to comprehensively examine in each of them the period of the crime, its event, object, subject, motive, and intent, by studying the quantitative and qualitative characteristics of the repressions. The decisive factor for qualifying a crime as genocide is the irrefutable proof of the intent to destroy. A corresponding conclusion should be prepared for each crime. It is also appropriate to consider the crimes of the Soviet authorities against ethnic, religious, and other minorities in Ukraine—Poles, Germans, Crimean Tatars, Jehovah's Witnesses, and others. Today, these crimes are well-studied and documented. The list for consideration could be as follows.
1. Repressions against the Ukrainian Autocephalous Orthodox Church, 1926–1930.
2. Mass repressions against peasants—“dekulakization,” evictions, arrests, and executions by decisions of the troikas of the OGPU Plenipotentiary Representations. 1930–1931.
3. Mass arrests and executions under the so-called “kulak operation” of the NKVD—executions according to predetermined quotas. July 1937–November 1938. (767,397 people arrested, of whom 386,798 were executed).
4. Mass arrests and executions on the basis of nationality within the framework of the so-called “national operations” of the NKVD (German, Polish, Latvian, etc.). July 1937–November 1938. (About 350,000 people arrested, of whom 250,000 were executed, including 111,000 Poles).
5. Mass arrests and executions of the Ukrainian intelligentsia, 1937–1938.
6. Mass deportations of the civilian population sanctioned by Stalin and the Politburo of the Central Committee of the All-Union Communist Party (Bolsheviks) on so-called “class” and national grounds:
– eviction of Polish citizens from the territory of Western Ukraine and Western Belarus, 1939–1940;
– eviction of citizens from the Baltic countries and Moldova in May–June 1941;
– eviction of Germans, Crimean Tatars, and other peoples in 1941–1945;
– eviction of so-called “kulaks” from the Baltic countries and Moldova, 1949;
– eviction of about 2 million Ukrainians in the second half of the 1940s “for assisting the UPA.”
7. The mass execution of Polish prisoners of war and civilians by decision of the Politburo of the Central Committee of the All-Union Communist Party (Bolsheviks) of March 5, 1940: in April–May 1940, the NKVD organs executed 21,857 Polish citizens in Katyn, Mednoye, and Kharkiv.
8. Repressions against the Ukrainian Greek Catholic Church, 1945–1946.
Thus, the preconditions will be created in Ukraine to conduct a full-fledged judicial process to examine the crimes of communism. In reality, there is no doubt that Stalin and his henchmen are guilty of the destruction of peoples and ethnic communities, and that the communist totalitarian regime, which made mass terror a practice of state administration in the USSR, is in itself criminal. However, it is necessary to establish these facts in the legal sphere. At the same time, since all the accused have died, it is necessary to create special rules for such a court, similar to the Charter of the International Military Tribunal of August 8, 1945. And such a court is necessary, no matter how utopian the idea of holding it may seem, and increasingly so. This court should be international, with the participation of Germany, Poland, the Baltic countries, and other nations, and should examine crimes against other ethnic groups. Will the leadership of the Ukrainian state find the political will to conduct such a trial?